In
June, I was honored to attend and participate in a Symposium entitled
Tūhonohono: State and Custom in Aotearoa-New Zealand and want
to share with you some of my observations and thoughts from that visit.

First, a little
about the Symposium sponsors - Te Mātāhauariki Research Institute at
the University of Waikato and Tainui Endowed College. Te Mātāhauariki
means the imminent dawn and in 1997 at the Institute’s inception, this
title reflected the optimistic objective of joining customary laws and
principles of Māori and Pākehā (European or non-Māori) societies in
a cohesive Aotearoa-New Zealand jurisprudence. A key concept underlying
Te Mātāhauariki’s research has been that existing law requires the adoption
of Māori customary law into common law. Since little information was
readily available on Māori customary law, Te Mātāhauariki began to put
together a compendium, based mainly on authoritative primary sources,
of references to the concepts and institutions of Māori customary law.
The Symposium celebrated the completion of that project and the pre-release
in CD format of Te Mātāpunenga: A Compendium of the References to
the Conceptsand Institutions of Maori Customary Law.

MESSAGE
FROM THE DIRECTOR OF EDUCATIONAL DEVELOPMENT: ANNOUNCING “MAOLI THURSDAYS”by Susan K. Serrano Director of Educational
Development
As we are poised to begin a new academic year, the Center for Excellence
in Native Hawaiian Law is pleased to announce Maoli Thursdays – a lunchtime
forum and speaker series to be held on the first Thursday of every month.
Maoli Thursdays will feature discussions on contemporary Native Hawaiian
and other Pacific and Indigenous legal and justice issues. Speakers
will include faculty, local attorneys, community members, and scholars
who will discuss their recent work, cases and activities. Maoli Thursdays
will also provide opportunities for students to find out more about
the Center’s courses, research and publications, job and volunteer opportunities,
events and conferences, and careers in Native Hawaiian law.

The Center for
Excellence in Native Hawaiian Law promotes discourse between the legal
community, the Native Hawaiian community, and the community at large.
To further this goal, the Center is providing brief summaries of selected
state and federal court decisions that impact, or may impact, Native
Hawaiians. This issue of Ka He‘e includes summaries of the U.S. District
Court for the District of Columbia’s decision in Vann v. Kempthorne
(the “Cherokee Freedmen” case), the Doe v. Kamehameha Schools
settlement and its aftermath, and the Hawai‘i Supreme Courts’ decision
in Wailuku Agribusiness Co., Inc. v. Ah Sam.

The Center for
Excellence in Native Hawaiian Law is committed to exploring and critically
examining the many significant and pressing issues facing Native Hawaiians.
In order to provide lawyers, community members, students, advocates
and legal scholars with helpful tools and critical analyses of Native
Hawaiian law, the Center is providing below brief summaries of recent
law review articles on legal issues facing Native Hawaiians. This issue
of Ka He‘e summarizes law review articles on Native Hawaiian traditional
knowledge, cultural property, bioprospecting and biopiracy, and the
ways in which Native Hawaiians are protecting their traditional and
cultural knowledge systems through self-determination efforts.

The Hawai‘i State
Legislature addressed several issues of particular interest to Native
Hawaiians during its 2007 Regular Session. Particularly important is
the enactment of legislation creating an ‘Aha Moku council to provide
community input for natural resource management issues. The Legislature
also passed the Save Haven Bill, which allows parents to leave a newborn
in a place of safety without fear of prosecution. While the law promotes
child safety, it may create potential problems because a child may be
unable to verify his or her Native Hawaiian ancestry. Finally, the Legislature
also expended considerable, yet unsuccessful, efforts to amend Chapter
205, H.R.S., the statewide land use law allocating land to the Urban,
Rural, Agricultural, and Conservation land use districts. Although this
legislation failed to pass, we include a short note to highlight the
possible effects of some of these proposals on efforts to protect Native
Hawaiian traditional and customary practices.

BROKEN
PROMISE? A BRIEF UPDATE ON THE U.S. ROLE IN NATIVE HAWAIIAN RECONCILIATION
SINCE THE 1993 APOLOGY
by Ashley Obrey 2L

What
is past is not forgotten. The
pain of the past lives on and justice delayed is justice denied… From
the mountain to the sea, the river of justice must flow freely. -John Berry at ‘Iolani Palace Bandstand [1]

I.
Trusts Betrayed, Promises Made
The year 1893 evokes images of sadness, loss, and betrayal. For this
year symbolizes the end of the Hawaiian nation at the hands of American
businessmen and agents of the United States.

The political
landscape for some Indigenous Peoples is shifting – at least at the state
level. A significant indication of this change is Virginia’s 2007 call
for reconciliation in its path-breaking legislative statement of regret
over not only the harms of slavery for African Americans [1] but also
the “exploitation of Native Americans.” [2] In February 2007, the Virginia
legislature unanimously acknowledged “with profound regret the involuntary
servitude of Africans and the exploitation of Native Americans, and call[ed]
for reconciliation among all Virginians.” [3] The legislative resolution
recognized the manifold injuries inflicted upon Native Americans as well
as African Americans by the state and, in turn, Virginia accepted responsibility
for those harms.

The Center for Excellence in Native Hawaiian Law’s Community Outreach
Program develops and facilitates outreach programs to both Native Hawaiian
youth and community members. Our newest endeavor – the Ola I Ka Wai
Initiative – involves creating and publishing a primer on water rights
and issues, along with community outreach to disseminate such information
to rural Native Hawaiian communities.

The
Center for Excellence in Native Hawaiian Law is pleased to announce
the release of two new Native Hawaiian legal resources. The new Bibliography
of Native Hawaiian Legal Resources: Materials Available at the University
of Hawai‘i at Manoa Libraries provides an easily-accessible listing
of Native Hawaiian legal resources at the UH Hamilton Library, Hamilton
Asia Collection, Hamilton Hawaiian & Pacific Collection, and the
William S. Richardson School of Law Library. The Bibliography
is categorized into areas such as: cultural knowledge and property;
land and natural resources; current and historical laws; legal cases;
native rights and claims; overthrow and annexation; sovereignty and
self determination; and Hawaiian language documents.

Navajo Nation
v. U.S. Forest Service, 479 F.3d 1024 (9th Cir. 2007),involves
a dispute over a proposal to expand the private Snowbowl ski resort,
located on U.S. Forest Service lands on the San Francisco Peaks of Arizona,
and to use recycled sewage effluent to make artificial snow to increase
the length of the skiing season. The Peaks are sacred to a number of Southwestern
tribes; therefore, the Navajo Nation, White Mountain Apache Nation,
Havasupai Tribe, Hopi Tribes, as well as other plaintiffs, challenged
the Forest Service’s approval of the plan on various grounds, among
them the claim that the use of recycled effluent would violate the Religious
Freedom Restoration Act (RFRA) because it would destroy the mountain’s
purity and contaminate the natural resources needed to perform certain
religious ceremonies, thus making it impossible for the tribes to continue
their religious practices.

The
Center is pleased to welcome our five new Summer Fellows in Native Hawaiian
Law: Moani Crowell; Li‘ulā Kotaki;
Mana Moriarty; Chris Santos and Nāpali
Souza. Moani is working for Paul, Johnson, Park & Niles,
which represents the Office of Hawaiian Affairs in a water rights case.
Mana and Nāpali are working with the Bioprospecting Commission
housed at the Office of Hawaiian Affairs. Through the Summer Fellowship
Program, I have been given a rare opportunity to explore an area of
law that, as a Native Hawaiian law student, is deeply personal and reflects
my future career pursuits,” said Nāpali. “I am grateful for the
ability to immerse myself in a position that furthers the interests
of the Native Hawaiian community.

The
Center is pleased to announce that Dr. Robert Joseph, a Māori legal
scholar from the University of Waikato and a Research Fellow with the
Te Mātāhauariki Institute will be speaking on “Reconciliatory Justice
– Addressing Historic Injustices Against Indigenous Peoples.”

Like
the law, the he‘e (octopus) is many faceted. The he‘e changes color and camouflages
itself. It can melt into the background; it is malleable. It can squirt protective
ink, obfuscating what should be clear and apparent. Native Hawaiians recognize
that the he‘e has both positive and negative attributes. Like the he‘e, the
law offers both benefits and challenges to Native Hawaiians.